United States v. Marco Olarte-Rojas , 820 F.3d 798 ( 2016 )

Case: 14-41408 Document: 00513485746 Page: 1 Date Filed: 04/29/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-41408 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, April 29, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
MARCO ANTONIO OLARTE-ROJAS,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, SOUTHWICK, and COSTA, Circuit Judges.
W. EUGENE DAVIS:
Marco Antonio Olarte-Rojas pleaded guilty to one count of transportation
of an alien within the United States by means of a motor vehicle for purposes
of financial gain and was ultimately sentenced to 57 months of imprisonment
with no supervised release. On appeal, he argues that he should not have
received an enhancement for use of a dangerous weapon and that the district
court had no jurisdiction to resentence him to correct its error in sentencing
him the day before. For the reasons set forth below, we affirm.
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I. Background
The presentence report (“PSR”) set forth the following offense conduct:
On August 20, 2014, Customs and Border Patrol agents patrolling an area near
the Rio Grande River saw a man using a tarp to cover persons in the bed of a
parked truck; the man noticed the agents and drove away. The agents tried to
conduct a traffic stop, but the truck continued its flight. The agents, along with
other law enforcement officers, pursued the truck for two miles. Agents saw a
bucket being discarded from the truck and determined that the occupants of
the truck had deployed caltrops, i.e., metal spikes that alien and drug
traffickers often deploy during pursuits to puncture the tires of police units.
The caltrops disabled two law enforcement vehicles by puncturing the
cars’ tires; neither the agents in the disabled units nor other motorists were
injured. The truck continued to flee until it crashed into a canal; multiple
people were ejected from the truck. The driver of the truck, identified as Olarte-
Rojas, fled on foot; agents captured him without incident. The truck was found
to contain 19 undocumented aliens, 16 of whom required medical treatment
due to the crash.
A number of the aliens were interviewed. The aliens stated that, with
the help of an alien smuggling organization, they were moved across the Rio
Grande River and into a truck. The aliens identified Olarte-Rojas as the driver.
One alien, who was inside the cab of the truck, stated that, during the flight
from agents, Olarte-Rojas instructed him to retrieve a bucket of caltrops; the
caltrops then were tossed out of the truck.
Marco Antonio Olarte-Rojas pleaded guilty to one count of transportation
of an alien within the United States by means of a motor vehicle for purposes
of financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II),
and 1324(a)(1)(B)(i). The probation officer assigned a base offense level of 12
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under U.S.S.G. § 2L1.1. Olarte-Rojas was assessed the following upward
adjustments: a six-level adjustment under § 2L1.1(b)(2)(A) because the offense
involved fewer than 25 undocumented aliens; a two-level adjustment under
§ 2L1.1(b)(6) because the offense involved intentionally or recklessly creating
a substantial risk of death or serious bodily injury to another person; a four-
level level adjustment under § 2L1.1(b)(7)(B) because an undocumented alien
sustained a serious bodily injury; and a two-level adjustment under U.S.S.G.
§ 3C1.2 because Olarte-Rojas recklessly created a substantial risk of death or
serious bodily injury to another person while fleeing. Olarte-Rojas’s resulting
total offense level was 26. That offense level, combined with his criminal
history category of I, yielded an advisory guidelines range of 63 to 78 months
of imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
At sentencing, the district court concluded that the probation officer had
miscalculated the enhancement that should apply under § 2L1.1(b)(2)(A) based
on the number of aliens involved; the district court determined that the proper
enhancement was three levels. The district court further found that Olarte-
Rojas should be granted a three-level reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1.
The district court also raised sua sponte the issue whether a four-level
adjustment should apply under § 2L1.1(b)(5)(B) because a dangerous weapon
was used, i.e., the caltrops. The court opted to apply the adjustment and “let
the Fifth Circuit decide whether [caltrops were] a dangerous weapon.” Olarte-
Rojas contended, inter alia, that the adjustment should not apply because
caltrops were not a dangerous weapon.
In light of the revised calculations at sentencing, the district court found
that Olarte-Rojas’s total offense level was 24, and his guidelines imprisonment
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range was 51 to 63 months. The district court imposed a sentence of 54 months
of imprisonment and no supervised release.
The following day, the district court reconvened the sentencing hearing
under Federal Rule of Criminal Procedure 35(a). The district court indicated
that it had miscalculated Olarte-Rojas’s offense level and guidelines
imprisonment range because it wrongly determined the applicable adjustment
under § 2L1.1(b)(5)(B); the district court explained that the guideline instructs
that application of the adjustment should result in a minimum offense level of
20, but the four-level adjustment applied at the initial sentencing yielded only
an offense level of 19. The district court concluded that it should have assessed
a five-level adjustment. The district court found that Olarte-Rojas’s correct
total offense level was 25 and that his proper guidelines imprisonment range
was 57 to 71 months.
Over Olarte-Rojas’s objection to whether the district court possessed the
authority to resentence him, the district court found that a sentence within the
revised guidelines range was appropriate. The district court thus sentenced
Olarte-Rojas to 57 months of imprisonment with no supervised release. He
filed a timely appeal, arguing that he should not have been subject to the
dangerous weapon enhancement and that the district court had no jurisdiction
to resentence him the day after entering the original sentence.
II. Analysis
A. Adjustment for Use of a Dangerous Weapon
Olarte-Rojas argues that he was wrongly assessed an adjustment under
§ 2L1.1(b)(5)(B) on the ground that the caltrops deployed against the pursuing
agents were a dangerous weapon. He essentially contends that caltrops are not
a weapon because they are only used defensively to hinder an enemy and are
not dangerous because no death or serious bodily injury results from their use.
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He also asserts that there was no evidence that the caltrops deployed in this
case caused death or serious bodily injury and, therefore, the Government
failed to satisfy its evidentiary burden.
This court reviews the district court’s interpretation and application of
the Sentencing Guidelines de novo and its factual findings for clear error. 1 In
deciding whether an adjustment under the Guidelines should apply, a district
court may draw reasonable inferences from the facts, and these inferences are
findings of fact that are reviewed for clear error. 2 A factual finding is clearly
erroneous if it is not plausible in light of the record as a whole. 3
Section 2L1.1(b)(5)(B) states that “[i]f a dangerous weapon (including a
firearm) was brandished or otherwise used, increase [the base offense level] by
4 levels, but if the resulting offense level is less than 20, increase to level 20.”
“Dangerous weapon” is defined by the Guidelines as (i) an instrument capable
of inflicting death or serious bodily injury, or (ii) an object that is not an
instrument that is capable of inflicting death or serious bodily injury but that
closely resembles such an instrument or was used in a manner that created
the impression that the object was such an instrument (e.g., the defendant,
while committing a bank robbery, wrapped his hand in a towel to create the
appearance of a gun). 4 “Serious bodily injury” is an injury involving “extreme
physical pain or the protracted impairment of a bodily member, organ, or
mental faculty; or requiring medical intervention such as surgery,
hospitalization, or [ ] rehabilitation.” 5
1 United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
2 Id.
3 Id.
4 U.S.S.G. § 1B1.1, comment. (n.1(D)).
5 § 1B1.1, comment. (n.1(L)).
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We cannot find, and the parties do not cite, any case law in which this
court or any other federal circuit court has considered whether a caltrop is a
“dangerous weapon” for purposes of the Guidelines. However, in reviewing
whether an object is a “dangerous weapon,” this court seemingly has applied
an expansive definition and included virtually any item that has the capacity,
given the manner of its use, to endanger life or inflict great bodily injury. See
United States v. Nelson, 262 F. App’x 589, 590 (5th Cir. 2008) (hot water);
United States v. Gedman, No. 99-50523, 2000 WL 177903, 3 (5th Cir. Jan. 18,
2000) (fire extinguisher); United States v. Coronado, No. 91-6307, 1993 WL
18784, 3 (5th Cir. May 27, 1993) (shovel); see also United States v. Morris, 131
F.3d 1136, 1139 & n.4 (5th Cir. 1997) (indicating that ordinary objects have
the capacity to inflict death or serious bodily injury; refusing to resolve whether
the Guidelines require objects to be used in a certain manner to be “dangerous
weapons”). Moreover, as this court has noted, other courts have held that, “in
the proper circumstances, almost anything can count as a dangerous weapon,
including walking sticks, leather straps, rakes, tennis shoes, rubber boots,
dogs, rings, concrete curbs, clothes irons, and stink bombs.” United States v.
Nunez-Granados, 546 F. App’x 483, 486 (5th Cir. 2013) (citation omitted).
Olarte-Rojas contends that caltrops are not a weapon because they are
“defensive in nature.” He solely relies upon the “conventional definition” of
“weapon,” which, he asserts, requires that the object at issue be used
offensively to attack another person; he cites a definition of “weapon” to
support his contention. We do not believe the meaning of “weapon” is as limited
as Olarte-Rojas asserts; “weapon” in general usage tends to include both
instruments of attack and instruments of defense. Nevertheless, we cannot
look to a general definition because the Guidelines define “dangerous weapon.”
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As noted above, the Guidelines define “dangerous weapon” as any item
that has the capacity to inflict death or serious bodily injury, resembles such
an item, or was used in a manner that suggested it was such an item. This
definition, rather than focusing on whether the item was used offensively or
defensively, focuses on how the object was employed or its potential, perceived
or real, to cause a specific type of harm. 6 Case law suggests that, regardless of
underlying intent (i.e., to attack or to defend), nearly any object can be a
“dangerous weapon” depending on its manner of use and the nature of any
injuries. 7 Other courts have held that objects that have a defensive function
can be “dangerous weapons” in light of their use and the harm inflicted. 8
The district court found that the caltrops used in this case were a
“dangerous weapon,” i.e., that they had the capacity to inflict death or serious
bodily injury. The district court reviewed pictures offered by the Government
showing, inter alia, the caltrops deployed, the bucket used to carry and deploy
the caltrops, and the punctured tires of the units that were disabled as a result
of the caltrops. The district court found that there is no difference between
using caltrops and “shooting out the tires of law enforcement vehicles”; that
caltrops are “illegal in this country in that they are a weapon”; that caltrops
are more dangerous than many other items that are considered “dangerous
6 § 1B1.1, comment. (n.1(D)).
7 See Nelson, 262 F. App’x at 590; Gedman, 2000 WL 177903, at 3; Coronado, 1993
WL 185794, at 3 (rejecting claim that items designed for non-dangerous use cannot be
dangerous weapons).
8 See United States v. Neill, 166 F.3d 943, 949 (9th Cir. 1999) (pepper spray); United
States v. Bartolotta, 153 F.3d 875, 879 (8th Cir.1998) (mace); United States v. Dukovich 11
F.3d 140, 142-43 (11th Cir. 1994) (tear gas); but cf. United States v. Harris, 44 F.3d 1206,
1216 (3rd Cir. 1995) (holding that Government did not produce reliable evidence showing
that the pepper spray at issue was capable of causing death or bodily injury such that it was
a “dangerous weapon”); see also United States v. Perez, 519 F. App’x 525, 525-26 (11th Cir.
2013) (same).
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weapons” (e.g., baseball bats); and that caltrops have no use other than as a
“defensive weapon.”
The district court also adopted, in relevant part, the PSR, which noted
that the use of caltrops in this case “posed reckless endangerment to [the
pursuing officers or other motorists],” i.e., Olarte-Rojas, by deploying caltrops,
created a substantial risk of death or serious bodily injury to another person
during his flight from law enforcement. 9 At sentencing, the district court stated
that the caltrops created a “substantial risk of serious bodily injury and death
to other people, like law enforcement officers who are in high speed pursuit . .
. to then have a blow-out.” Olarte-Rojas did not object to this finding or offer
any evidence to rebut or to undermine the reliability of the PSR. 10
On appeal, Olarte-Rojas contends that, even if caltrops are a “weapon,”
they are not capable of inflicting death or serious bodily injury and, therefore,
do not satisfy the definition of “dangerous weapon.” As he correctly asserts,
there was no evidence that the caltrops deployed in this case caused death or
serious bodily injury; the PSR noted that “[n]o physical injuries to the pursuing
officers or other motorists occurred.” Also, while the record supports that the
caltrops caused the tires of the law enforcement units to puncture to the extent
that they were disabled, there is no indication that the drivers of the units lost
control of the units on account of the caltrops, i.e., the units were not involved
in an accident or a crash because of the caltrops.
However, the definition of “dangerous weapon” does not require that use
of the instrument actually inflict death or serious bodily injury; the definition
states only that the instrument be capable of inflicting death or serious bodily
9 See U.S.S.G. § 3C1.2.
10 See United States v. Harris, 702 F.3d 226, 230-31 (5th Cir. 2012).
8
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injury. 11 Given the broad definition of “dangerous weapon” in the Guidelines,
the similarly broad interpretation of that definition in case law, and the nature
of caltrops, we conclude that they meet the Guidelines definition of “dangerous
weapon” in this case. Olarte-Rojas deployed the caltrops to puncture the tires
of vehicles engaged in a high speed pursuit. Common sense alone suggests that
causing a blow-out at high speeds could easily lead to death or serious bodily
injury, whether or not death or serious bodily injury actually resulted in this
instance. Therefore, we affirm the district court’s assessment of the
enhancement under § 2L1.1(b)(5)(B) for use of a dangerous weapon based on
Olarte-Rojas’s deployment of caltrops.
B. The District Court’s Authority to Resentence
Next, Olarte-Rojas contends that the district court did not have
jurisdiction to resentence him and, thus, the sentence imposed at his
resentencing is invalid. He argues that, although Federal Rule of Criminal
Procedure 35(a) permits a sentencing court to correct certain errors within 14
days of sentencing, that rule does not apply in this case because the error
corrected by the district court—i.e., an application of the Guidelines—is
prohibited. Olarte-Rojas further argues that the Government cannot
demonstrate that the error corrected under Rule 35(a) amounts to reversible
plain error, which he maintains is the applicable standard of review for a
resentencing under Rule 35(a). We disagree.
Rule 35(a) sets forth that, within 14 days after sentencing, the district
court may correct a sentence that resulted from “arithmetical, technical, or
other clear error.” The narrow authority of the sentencing court to act under
Rule 35(a) extends solely to “cases in which an obvious error or mistake has
11 § 1B1.1, comment. (n.1(D)).
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occurred in the sentence, that is, errors which would almost certainly result in
a remand of the case to the trial court for further action.” 12 Rule 35(a) is not
designed for the court to reconsider the application or interpretation of the
Guidelines or to change its mind about the propriety of a sentence, and should
not be used to reopen issues previously resolved at sentencing “through the
exercise of the court’s discretion with regard to the application of the
sentencing guidelines.” 13 Misgivings about “the leniency or severity of the
sentence” are not the type of error contemplated by Rule 35(a). 14 This court
reviews de novo whether the district court had jurisdiction to resentence under
Rule 35. 15
Here, it is undisputed that, if Olarte-Rojas was subject to an adjustment
under § 2L1.1(b)(5)(B), the district court erred at the original sentencing with
respect to the calculation of his total offense level and guidelines imprisonment
range. Specifically, the district court wrongly calculated the number of levels
that Olarte-Rojas’s offense level should be increased in light of the application
of an adjustment under § 2L1.1(b)(5)(B).
As noted, Olarte-Rojas’s base offense level was 12. After a three-level
adjustment under § 2L1.1(b)(2)(A), his offense level was 15. 16 Section
§ 2L1.1(b)(5)(B) states that a four-level increase applies; however, if the
resulting offense level is less than 20, the offense level should be increased to
level 20. In this case, at the initial sentencing, the district court assessed a
four-level adjustment under § 2L1.1(b)(5)(B), which resulted in an offense level
of 19; the resulting offense level was less than 20 and, thus, the district court,
12 FED. R. CRIM. P. 35, Advisory Committee’s Notes (1991 Amendments).
13 Id.
14 United States v. Ross, 557 F.3d 237, 239 (5th Cir. 2009).
15 See Ross, 557 F.3d at 239.
16 See § 1B1.1(a)(2) (indicating that courts should apply base offense level and specific
offense characteristics in the order listed).
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according to the express dictates of § 2L1.1(b)(5)(B), should have increased the
offense level to 20.
The failure of the district court to apply the proper increase caused the
guidelines sentencing range to be calculated erroneously; the district court
found that the applicable guidelines range of imprisonment was 51 to 63
months. The district court sentenced Olarte-Rojas within the incorrect
guidelines range to 54 months of imprisonment. At resentencing, the district
court identified its error and noted that it wrongly had assessed only a four-
level adjustment under § 2L1.1(b)(5)(B); the district court indicated that it
“need[ed] to bump [Olarte-Rojas] to a Level 20” if it concluded that he used a
dangerous weapon. The district court stated that it “[made] a computational
error which is somewhat mathematical in that [it] added four points” and
should have increased Olarte-Rojas’s offense level by five levels. The district
court also noted that it made “a mistake of law” by wrongly reading and
applying § 2L1.1(b)(5)(B). After applying the required five-level adjustment,
the district court found that the proper total offense level was 25 and that the
applicable guidelines range of imprisonment was 57 to 71 months. The district
court found that a within-guidelines sentence was proper and sentenced
Olarte-Rojas to 57 months of imprisonment.
Olarte-Rojas argues that the district court lacked jurisdiction to correct
his sentence in light of the express language of the Advisory Committee’s notes
to Rule 35, which state that Rule 35(a) is not meant to provide an opportunity
for the sentencing court to reconsider the application or interpretation of the
Guidelines. This argument, however, is misguided. Here, the district court did
not reexamine whether a guideline should be applied, reevaluate the
application of a guideline that was subject to interpretation, reconsider
calculations made under the appropriate guidelines range, seek to alter the
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sentence because of a disagreement with a guideline, or reconsider whether
the sentence was a proper exercise of its discretion. 17 Instead, the district court
identified that, in applying § 2L1.1(b)(5)(B), it contravened the express
language of the guideline, assessed a numerically incorrect adjustment that
was contrary to the dictates of the guideline, and wrongly calculated the total
offense level and guidelines range.
The error committed by the district court, however it is characterized, is
the type of error that can be corrected under Rule 35(a). The district court, by
incorrectly ascertaining how § 2L1.1(b)(5)(B) should apply, imposed a sentence
that improperly reflected the advisory guidelines range; the original sentence
was fashioned based upon a misapprehension of the explicit prescriptions of
§ 2L1.1(b)(5)(B), and the district court therefore did not review the applicable
guidelines range when selecting the sentence to impose.
The procedure to be followed with regard to sentencing begins with the
court making a correct determination of the applicable guidelines range. 18 The
Supreme Court expressly directed that, in reviewing a district court’s
sentencing decision, the courts of appeals “must first ensure that the district
court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range.” 19 While the Guidelines are
advisory in light of United States v. Booker, 543 U.S. 220 (2005), district courts
still must properly calculate the applicable guidelines range before imposing a
sentence. 20
17 See Ross, 557 F.3d at 243; United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir.
1997); United States v. Lopez, 26 F.3d 512, 520 (5th Cir. 1994).
18 See United States v. Ibarra-Luna, 628 F.3d 712, 713 (5th Cir. 2010) (indicating that
a district court must correctly calculate the applicable guidelines range before imposing
sentence) (citation omitted).
19 Gall v. United States, 552 U.S. 38, 51 (2007).
20 See § 3553(a)(4); United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
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The incorrect application of the Guidelines that results in an erroneous
calculation of the total offense level and the guidelines sentencing range is an
obvious error or mistake that almost certainly would result in a remand. 21
Other circuit courts have held that analogous sentencing errors can be
addressed under Rule 35(a). 22 Thus, the error committed in this case is a
paradigmatic example of the type of error that Rule 35(a) was intended to
address, and Olarte-Rojas cannot show that the district court lacked
jurisdiction under Rule 35(a) to resentence him.
Because we conclude that the district court properly applied an
adjustment pursuant to § 2L1.1(b)(5)(B), we also conclude the district court
was right to correct its error in calculating Olarte-Rojas’s total offense level
and advisory guidelines range by vacating the initial sentence and
resentencing him.
AFFIRMED.
21 FED. R. CRIM. P. 35, Advisory Committee’s Notes (1991 Amendments); United States
v. Rowell, No. 99-20731, 2000 WL 1056137, 1 (5th Cir. July 21, 2000); see also Delgado-
Martinez, 564 F.3d at 753 (indicating that sentences resulting from procedural error must be
remanded unless the error did not affect selection of sentence).
22 See United States v. Fawcett, 522 F. App’x 644, 653 (11th Cir. 2013); United States
v. Ross, 413 F. App’x 457, 461-62 (3d Cir. 2011); United States v. Mitchell, 376 F. App’x 749,
751 (9th Cir. 2010); United States v. Quijada, 146 F. App’x 958, 970-71 (10th Cir. 2005); see
also United States v. Waters, 84 F.3d 86, 89-91 (2d Cir. 1996) (affirming corrected sentence
where district court clearly erred by failing to consider U.S.S.G. § 7B1.3(e)).
13